ACLU asks: “What did Yoo say?”

The American Civil Liberties Union is hoping that Barack Obama's Justice …

The Bush administration has repeatedly assured the public that controversial programs of "enhanced interrogation" and warrantless wiretapping were thoroughly vetted by government attorneys and determined to be lawful. But thus far, only a select handful of individuals, even within the intelligence agencies and the Department of Justice, have been permitted to see the arguments. Now the American Civil Liberties Union is asking Barack Obama's Justice Department to release memos produced by the Office of Legal Counsel.

The official rationale for keeping a lock on these memos—primarily the work of Berkeley law professor John Yoo—has been that the legal arguments could not be revealed without implicitly disclosing operational details of classified programs. But another reason may be that they're simply specious. James Comey, who as acting Attorney General famously refused to reauthorize the data mining component of the NSA program, told Dick Cheney that "no lawyer reading that could reasonably rely on" Yoo's analysis.

It may be some time before we get a formal answer, as Obama's appointees to top spots at Justice are still awaiting confirmation. But Dawn Johnsen, who has been tapped to head the Office of Legal Counsel, told Congress earlier this year that she regarded the concept of "secret law" as "antithetical to our constitutional democracy":

May OLC issue binding legal opinions that in essence tell the president and the executive branch that they need not comply with existing laws—and then not share those opinions and that legal reasoning with Congress or the American people? I would submit that clearly ... the answer to that question must be no.

I've speculated before on what those wiretap memos might contain, suggesting that the Bush OLC may have attempted to skirt statutory restrictions on gathering communications metadata by parsing the law to bar targeted, individualized requests for information, but not large-scale data mining. If Johnsen's policy matches her testimony, we may soon know for sure.